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Police Tailgating as Entrapment: A Comment and Query

I live a fair distance from work, so I spend a fair bit of time driving on interstate highways. Because I do, I have a fair opportunity to observe the rather unfair doings of the New Jersey State Police on our interstate highways. This is the kind of behavior I see just about every day:

And this is the kind of behavior I’ve seen more than once (albeit by local police, not by state troopers):

I once saw a Glen Ridge police officer tailgate and then crash into the car he was tailgating, in part because he was lighting a cigarette while doing so. Having crashed into the car in front of him (at a red light), he called in backup, surrounded the victim’s car, then aggressively interrogated her at the scene–presumably for the crime of his having crashed into her. (This despite the fact that liability for rear-end collisions is almost always pinned on the car in the rear.) I wish I’d recorded it, but I didn’t have a cellphone at the time.

“Entrapment” is a defense against a criminal charge, and consists in a government agent’s inducing a criminal act in order to prosecute it, in a person who would have otherwise have not committed the act. Here, and in the pages following, is the U.S. Department of Justice’s account of the elements of entrapment, along with recent cases, and other pertinent material.

As might be surmised, a defense based on a counterfactual conditional is going to be hard to establish: it’s going to be tough to prove that you wouldn’t have done what you ended up doing, even if there ends up being some fact of the matter about counterfactual conditionals. And on the standard legal analysis, to prove entrapment, not only do you have to prove that you wouldn’t have committed the crime; you have to prove that you had no “disposition” to commit it.

Honestly, I’m not even sure what “disposition” means in this context, and the case law doesn’t really help. I’m guessing that this is a situation in which it really wouldn’t pay to be a Freudian, since Freudians think that we have “dispositions” to do just about everything (in the form of repressed id-generated desires). I’d really hate to be Oedipus trying to plead entrapment against charges of parricide and incest.

Oedipus, to the court: I wouldn’t have killed my father or married my mother, even though I did. Not only that, I had no disposition to do so!

Would Oedipus have to prove that he didn’t have an Oedipus Complex?

Ahem. To adopt (and adapt) the Wikipedia definition, “tailgating” is the act of one car, B’s, following so closely behind another vehicle, A, that a sudden stop by A would cause B to collide with A. “Tailgating” is a colloquial rather than legal term, but it captures a widespread and familiar phenomenon.

I don’t know what studies have been done on the subject, but I take it as obvious that police officers do tailgate. Again, I haven’t studied the subject in a formal way, but I also take it as obvious that one reaction that people have to being tailgated is to try their best to get out of the tailgater’s way. And again: I haven’t studied the subject formally, but I think it’s obvious that one common way of getting out of a tailgater’s way is to speed up, in order to put room between the two cars (decreasing the possibility of a collision), then move out of the tailgater’s way. If none of this is obvious to you, sue me.

I know I’m just trading in sheer intuitions here, but it seems obvious to me that drivers have a strong incentive to get out of the way of a police car that’s tailgating them; fear or anxiety aside, there’s also the thought that perhaps the police car is in a rush and on its way to an emergency. In that case, the natural inference is that they’re tailgating you because you’re driving too slowly, and you’re in their way. It then becomes a natural reaction to speed up and get out of the way. Maybe I’m over-relying on the concept of “the natural” here, but I think normal people would understand me, as would any cops or lawyers who qualify.

Now take a case in which a police officer tailgates you, inducing you–out of fear and/or concern–to speed up when you were previously traveling within the legal speed limit. Suppose that in speeding up, you violate the speed limit. Now suppose that you’re pulled over and cited for speeding. It seems obvious to me that that’s entrapment, so that an entrapment defense against the charge of speeding ought to work in this case.

Call me crazy, but it also seems obvious that besides being a case of entrapment, police tailgating is dangerous and unnecessary. I’d always thought that law enforcement was there to make driving safer. But arguably, tailgating makes it more dangerous. Which seems counter-purposive. And if tailgating is entrapment, the entrapment induces speeding–which compounds the dangers, and compounds the counter-purposive nature of the whole endeavor. I’m sorry if this sounds like wild-eyed conspiracy theorizing; it’s just how I see things.

And it seems obvious to me that if tailgating is a common police practice, as are quotas for speeding tickets (look at this, too), it’s absurd to defer to the testimony of a police officer who denies tailgating someone as against a defendant who claims to have been tailgated. If I say I’ve been tailgated, and you say you weren’t tailgating, and there is no evidence conclusively favoring either of us, the hard fact is that there surely isn’t evidence to believe you simply because you’re a state trooper, and state troopers are always to be believed.

Speaking of the perils of in-court testimony, I once had a judge tell me that he was convinced that I had run a stop sign, partly because Officer So-and-So had said I had–and he’d never known Officer So-and-So to lie. But the other reason he was convinced I’d run the stop sign (he continued) was that everyone ran that stop sign, or rather, everyone but him ran it. Since I was undeniably “everyone-but-him,” it was obvious enough that despite my denials, and despite the absence of any direct evidence of having run it, I surely had run the stop sign. “You may even sincerely believe that you didn’t run the stop sign,” he intoned, “but you did.” Guilty as charged. I entered the courtroom sincerely believing that I enjoyed a presumption of innocence before the law; having watched that presumption evaporate in a cloud of rhetorical vapor, I left the courtroom realizing that my belief in the legal presumption of innocence had been an illusion. (By the way, if you want to see what can really go wrong in cases of this nature, read this case.)

As I say, all of that seems obvious to me. But none of it seems obvious to law enforcement or to the legal profession. It doesn’t seem to be widely conceded among them that tailgating is a standard police procedure. When it is grudgingly conceded, it’s not regarded as problematic; it’s treated as a Standard Operating Procedure. Even if the most egregious cases are regarded as problematic, tailgating is generally not regarded as entrapment. I don’t know this for sure, but I don’t think that courts easily accept entrapment defenses in cases of police tailgating. (Judges write as though the issue never came up in the world they inhabit.) And as my example above suggests, it’s common practice for traffic court judges to give a presumption of credibility to a police officer in traffic cases, a presumption not accorded to the defendant–a practice that strikes me as flatly and obviously incompatible with the presumption of innocence, but doesn’t seem to bother legal professionals one bit. Finally, going by what I’ve read online, commenters–including defense attorneys–will troll anyone who invokes an entrapment defense, however meekly or commonsensically. Their central argumentative strategy seems to consist in trying very, very hard to miss the point.

When I’ve asked legal professionals about this, the response has usually been something to the following effect:

Existing legal and law enforcement practices may be inconvenient at times, but they work well. Changing them would be unfeasible, unrealistic, and unworkable, and would be a classic case of adopting a cure worse than the disease. We obviously need traffic enforcement, indeed, we probably need more stringent traffic enforcement than we have; traffic anarchy would cost lives and money. The standards and practices we currently use save lives and money. Hence they are both necessary and just, and should stay the way they are. Radical changes to those practices would entail anarchy, and should be rejected out of hand.

I’m curious if PoT readers know anything worth reading on this or related subjects. On the whole, I haven’t found anything worth reading. That said, I’m not a legal professional, and I’m not working with a particularly robust database, so I’m probably looking in all the wrong places.

And no, I haven’t recently been pulled over or received a speeding ticket.

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13 thoughts on “Police Tailgating as Entrapment: A Comment and Query”

I’ve been tailgated by police numerous times, and numerous other times by vaguely cop-looking unmarked cars of the same domestic makes and models as police cruisers. I’ve had it happen in my home states of New York, New Jersey, North Carolina, and Illinois, and in various other states in-between. I can’t imagine any sensible response but to accelerate sufficiently to re-establish a safe following distance from the offender, and change lanes to the right at the first moment of opportunity. It never occurred to me until now that there was any real likelihood of being pulled over for speeding. By the way, I’ve also been ticketed for speeding by an Ohio State Trooper who claimed to have clocked my speed from his own car which was traveling the other way across a concrete median on I-80 in Youngstown. When I asked him how he knew my rate of speed, he claimed to be in possession of a novel form of radar capable of accurately measuring my speed even though his own point of reference was moving rapidly in the opposite direction. I knew then and know now that this is physically impossible, but it was me and a state trooper on the side of I-80 with no one else in sight at 3:15am. At least twice, cops have pulled me over and fabricated in whole cloth a violation (in both cases, a phantom rolling stop) as a pretext to pull me over, “let me off with a warning” for the false violation, and cite me on some subsequent discovery (expired inspection sticker). Additionally, I’ve been pulled over for speeding (this time on I-85 in Butner, NC) by a North Carolina State Trooper who pulled out of a speed trap and then followed me into a construction area where the highway narrowed to one lane in-between concrete medians, tailgating me, flashing his lights, blaring his siren, and motioning enraged to the non-existent shoulder that I was somehow not pulling over into. And finally, I’ve a handful of times been nearly killed by a police car suddenly pulling out onto the highway to pursue a speeder whose driving posed no danger to anyone. What can we abstract from this? 1. While traffic laws in principle may promote safety, it does not follow that just any way of enforcing them promotes safety, and it begs the question of why we don’t have more reasonable procedural restrictions on traffic enforcement (the way we have, for example, for the admissibility of a detective’s findings in a criminal trial). 2. The expectations most of us are socialized to is that anything procedural that happens once a cop/police car begins an unsolicited interaction with you is for show, and that, traffic stops being mostly about revenue, your guilt or innocence isn’t the focus of any serious attention. Reality is, you serve at the pleasure of the cop. Whether it’s deference or cynicism that motivates people to accept the premise that we can’t put a more honest and functional process in place, I can’t tell. Maybe all of those people have get out of jail free cards from donating to the P.B.A., while schmucks like me sweat the cash and the points. I have to admit that I find it peculiar that for most moving violations, there is no objective standard of the burden of proof, when frankly there’s no good reason it has to be that way. Just consider the outlying exception of red light cameras. I’ve been caught by one. I wasn’t happy, but regardless of my feelings, the experience didn’t make me feel like the connection between police and justice was just some killing joke.

Just responding to the very last issue you raise: the verdict on red light cameras is very mixed, whether on technical or legal grounds. They seem like more of a panacea than they are.

I’m kinda pissed that you have a larger number of adverse contacts with the police than I do, at least when it comes to driving. Not that I don’t have my share of adverse contacts; it’s just that I tend to get accused of stuff like terrorism, assault, etc. Does legal trouble just run in our family? Speaking of which…

I definitely wouldn’t call red light cameras a panacea, and I think the points about yellow lights, signage, etc are persuasive. I don’t even know that I’m in favor of them in general. I’m comparing them to the way speed limit enforcement works: fraught with arbitrariness, intimidation, and gratuitous power-tripping. I’m not that surprised that they don’t have a statistically significant positive effect on meaningful public safety outcomes. (The same is true for a lot of perfectly reasonable things we do for the purpose of public safety and public health.) I get that the cameras may increase rear-end collisions, but from a safety perspective, I don’t think you can make the argument that permitting drivers to occasionally pull a “no cop, no stop” is equivalent to having drivers know they’re being monitored by red light cameras, and that’s effectively the real-world null hypothesis. I also don’t quite understand what having a cop “review” a still photo of a car across the stop line while a light is red is meant to accomplish. In my case, I was sent the photo of my car across the line with the traffic light visible in the shot, and I thought that was a standard procedure. There may be a technical aspect of this that I’m just not getting, and maybe I’m just being too concrete, but, either you ran the light and there’s demonstrable physical proof, or you didn’t. On that issue, the fact that it’s a cash cow for private contractors isn’t really relevant. (And by the way, in the time since I’ve moved back to NJ I find it shocking how often drivers will brazenly proceed straight through a light that’s been stone cold red for 3 or more seconds. At least if I’m behind a driver at a red light camera intersection I know what might be coming.)

Somewhat tangentially, my experience with parking meters in the venerable City of Chicago shows that what seems “objective” (because impersonal) often isn’t. On more than one occasion I filled a meter near my apartment in Hyde Park for an hour session, and returned in 40-45 minutes with the meter expired and a ticket issued. (It later came out as a known fact that parking meters were being run on “Chicago time.”) But I never thought to suspect an evil photoshopper when I got nailed for a red light camera violation (which occurred in Manhattan).

As for my adverse contacts with police, I think my litany above details most of them, in fact I think all but one. (I’ve also had several positive contacts: once a local cop pulled me over for speeding in Hyde Park and just told me there are pedestrians around and I should be more careful with no ticket – which I find more persuasive than ticketing; once I accidentally neglected to turn on my lights leaving a concert at Bethel Woods and a cop pulled me over to tell me; etc.).

The last of the adverse experiences, which I’d previously forgotten, might be the worst from a civil liberties standpoint. It dates back to the week of my senior year of college when I learned of my acceptance to medical school. I was attending a costume party and thought given the recent good news it might be funny to go as a “psycho doctor.” Late in the evening, they ran out of Solo cups. I was the only one sober, so I ran out to the Kroger. On the way back, a few blocks from campus, a Durham cop pulled me over for speeding (the speed limit: 35mph; my speed: 33mph). Again, he gunned it out of the Pizza Hut parking lot like he was apprehending El Chapo, and rode my bumper until I was in the shoulder. So he walks up, and sees me, wearing a white lab coat spattered with fake blood, with a fake severed leg prop in the passenger seat. He asks if I’ve been drinking. I say no and explain that I’m 22, I’ve been serving others who are over 21 at a campus party, and if he smells alcohol, that’s why. He tells me I have to get in his squad car and blow a breathalyzer, and that he could arrest me right now. He doesn’t administer a field sobriety test. I’m shitting my pants, because here I just got into med school, and this interaction is increasingly seeming like something totally messed up could happen. I blow the breathalyzer, he covers the result display with his hand, and asks me about 15 personal questions (what kind of name is that? where are you from originally?). Then pulls his hand away once I’ve sufficiently bored him. True to form, I’ve blown a 0.00. He lets me go, without issuing a ticket for the phony speeding violation.

This happened to me about 30 years ago, but it’s relevant. I was driving to work before sunrise. A car suddenly got on my tail. I sped up to put some distance between me and the tail-gater. As soon as I reached a speed for which I could be ticketed, I was pulled over by the tail-gater, who was a cop in a regulation police car with a “roof rack”, which I couldn’t see in the darkness. Boy, was I surprised, and ticked off that I had fallen for a ploy that cops have probably been using for decades.

Thanks for that. In working on this paper, I’ve actually wondered whether the situation I’m discussing is too hypothetical or too specific to merit discussion. I’ve seen cops tailgating, and when I’ve been stopped, I’ve been tailgated. But I’ve never been tailgated into a moving violation, or seen that happen in particular. I’ve read some of the literature on policing (legal and academic), but to the best of my knowledge, the issue of police tailgating is not discussed there. There’s extensive discussion of vehicular pursuit as a general matter, but not of police tailgating. In the literature on driving, there’s extensive discussion of tailgating, but not police tailgating. So even one data point is helpful.

As I say in my more recent post, in a way the issue is less tailgating per se than entrapment. The issue came in focus for me less by looking at cases of tailgating than by looking at cases of provocation: cops and soldiers provoking crowds into riots (in Jerusalem). That’s when it began to occur to me that the entrapment literature was too fixated on the enticement examples to see that the concept of entrapment ought to be more broadly understood.